Wednesday, July 31, 2013

By Mike Dorf
My latest Verdict column discusses the recent 4th Circuit ruling in United States v. Sterling. In that case, the appeals court ruled that NY Times reporter James Risen could not invoke any privilege under either the First Amendment or federal common law as a basis for shielding a source who is being prosecuted under the federal Espionage Act. I argue in the column that the First Amendment holding is reasonable, in light of the Supreme Court's seemingly categorical ruling in Branzburg v. Hayes. However, I also argue that the court was too quick to reject a common law privilege because much of the argument against judicial recognition of a common law privilege turns on considerations of institutional competence. Legislatures, it is said, are better positioned to make the complicated judgments about the circumstances in which the privilege should apply and when it can be overrridden. However, I note that a court-recognized common law privilege--precisely because it would be a matter of common law rather than constitutional law--would merely be a default rule. If Congress were truly unhappy with whatever common-law privilege the courts fashioned, it could revise or eliminate the privilege.

I also argue in the column that the current situation--in which nearly every state has some reporter-source privilege but the federal courts do not--undermines federalism. Where state law grants a privilege, it does so that reporters can give potential sources assurances that their identities will be kept confidential except in the limited circumstances where compelled disclosure is authorized by state law. But a reporter often will be unable to predict that only state litigation, rather than federal litigation, will arise. And so the lesser protection under federal law has the affect of weakening state protection.

It might be objected that the foregoing argument proves too much. After all, whenever federal privilege law protects less than state privilege law, the less protective federal law undermines the state privilege. Does anything distinguish the reporter-source privilege from the spousal communications privilege, the clergy-penitent privilege or the attorney-client privilege? I think that the general answer is no--but that leads me to think that Federal Rule of Evidence 501 itself is the culprit.

Rule 501 instructs federal courts to maintain and develop a federal body of common law privileges, except that in civil cases in which state law supplies the rule of decision, state privilege applies. That latter exception seems to me too narrow. Most privileges serve values unrelated to a trial's search for truth: journalistic values in the case of the reporter-source privilege; family values in the case of the spousal communications privilege; etc. Those values are not connected to the source of law that happens to bring a party or witness to a court. E.g., the state wants spouses to feel free to talk openly, and that concern is not in any way connected to the question of whether one of them ends up being sued for medical malpractice (as to which the state privilege will apply) or sued for copyright infringement (as to which the federal privilege will apply).

To be sure, the source of law is relevant in one way. Congress or the federal courts might make a judgment to place greater value on getting at the truth via all available evidence than any particular state does. That greater value on truth (relative to whatever value a particular privilege serves) would be in play in just those cases in which federal law supplies the rule of decision.

I think the foregoing is a fair rationalization of the structure of Rule 501, but I wonder whether we might not be better off with a different regime in which federal courts follow state privilege law, absent some very compelling reason to formulate a federal privilege rule. Such a regime would have the advantage of not undermining state privilege law, although it would introduce some new difficulties, such as choice of law questions in federal cases in which the law of more than one state can plausibly be thought to govern the privilege question and those states have different privileges.

Here, as elsewhere, we trade off one sort of uniformity for another. But to my mind the current regime makes the wrong tradeoff. A better model might be the admittedly complicated Erie doctrine. To oversimplify enormously (and to some extent to misstate the law), on matters of substance, federal courts follow state law, while on matters of procedure, they develop and follow their own law. Privileges are chiefly a means of regulating primary conduct, and therefore it makes sense to me--at least presumptively--to have federal courts simply follow state law.

Tuesday, July 30, 2013

By Mike DorfI recently purchased a $7 cell-phone charger to plug into the cigarette outlet of my car. The packaging boasted that it came with a "lifetime warranty." I wondered to myself what that might mean. Here was a phrase I had seen numerous times before but upon reflection I couldn't come up with a meaning that made any sense.A longstanding regulation promulgated by the Federal Trade Commission provides the following helpful guidance:

If an advertisement uses “lifetime,” “life,” or similar representations to describe the duration of a warranty or guarantee, then the advertisement should disclose, with such clarity and prominence as will be noticed and understood by prospective purchasers, the life to which the representation refers.

But what if the advertisement or product packaging does not specify the life that the warranty references? Let's consider a few possibilities:

(1) The product is guaranteed for the lifetime of the purchaser. That's absurd. Why should the duration of the guarantee depend on how much longer the purchaser lives? Should I give the charger as a gift to one of my daughters and then ask her to loan it to me to use during my lifetime, on the theory that then the warranty will last longer? Preposterous.(2) The product is guaranteed for its own lifetime. That's even more absurd. If the product breaks immediately, then it's dead, and so it's lifetime is over, and so the manufacturer is not in breach of the warranty. And yet despite that absurdity, I've been told by someone more knowledgeable than I am about contracts law that some courts have interpreted "lifetime warranty" to mean just that, at least in other contexts.

(3) The product is guaranteed for the lifetime of some other product with which it is sold or intended to be used. This seems like the natural meaning if, say, the tires on a new car come with their own separate "lifetime warranty." Presumably the warranty is good so long as the rest of the car works. The FTC reg I quoted above comes with two illustrations both involving such examples: a muffler sold with a car and a battery sold with a car. In those illustrations the advertisements specify that the car's lifetime provides the measuring rod, but I suppose one might infer that even in the absence of such specifications, a "lifetime warranty" for a part of a car is guaranteed for the life of the car.

But how would that principle apply to a car-charger for a cell phone? One end plugs into a car and the other end plugs into a cell phone. Is the charger guaranteed for the life of the cell phone or the life of the car? And really, why would the guarantee be linked to any particular car or particular cellphone when the charger is sold separately?(4) The product is guaranteed for the expected lifetime of the product. This begins to make a little bit of sense and it is the meaning ascribed to the phrase by a website I found, but the sparse case law I discovered by tooling around in the state case database did not generally adhere to this definition--and for good reason. What is the "expected lifetime" of the product? Doesn't that depend on how well made the product is? What if the product is a piece of junk, so that its expected lifetime is substantially shorter than the expected lifetime of comparable products manufactured by leading competitors? I suppose if I were a judge writing on a clean slate, I would hold that reasonable consumers treat "lifetime warranty" as itself a signal of quality, so that "lifetime warranty" means that the product is warranted for the reasonable expected lifetime of a well-made or at least average product of its class.(5) The website linked above also noted that while "reasonable expected lifetime" is the most common meaning, there is no generally accepted meaning of "lifetime warranty." But it turns out that doesn't really matter because in nearly all of the reported cases I looked at, contractual language gave more specific meaning to the term anyway. And that was true of my charger too--well, kind of. The charger came packaged in one of those hard plastic shells that can only be opened with a knife scissors and so I had no way of knowing what "lifetime warranty" meant before purchase. The outside of the package referred to the manufacturer's website for "further details" but I later looked on the website and the term wasn't defined there either, so even if I had wanted to look up the meaning of lifetime warranty before purchasing--presumably on my mobile phone while standing in the store, if I had a charged mobile phone, which I didn't, which is why I was buying the charger, but I digress--I couldn't have. However, once I got the charger home and cut through the packaging, I found a paper insert which included language spelling out the terms of my warranty.What were those terms? Well, first of all, the insert described the warranty as a "limited lifetime warranty" even though the word "limited" did not appear on the outside packaging. Then, it said that the manufacturer would repair or replace the product if it proved defective, so long as it was not damaged by being mishandled or misused. It has been over a quarter century since I took contracts in law school but I remember enough to realize this much: the limited lifetime warranty that the manufacturer appeared to give me no more than the implied warranty of merchantability that accompanies products even absent any express warranty.To my great surprise, however, the insert did not disclaim all consequential damages. It provided that if the charger is defective in a way that results in damage to my phone, the charger manufacturer will repair or replace my cell phone too. Now maybe that's also the default rule in most jurisdictions. After all, damage to the cellphone from a defective cellphone charger is the sort of foreseeable consequential damage that the rule of Hadley v. Baxendale makes recoverable. The charger manufacturer is not offering to pay all consequential damages. E.g., if the charger fries my phone and as a consequence I miss a call from a Hollywood director offering to cast me in the next Star Wars movie, with the result that someone else gets the part, the maker of the charger isn't going to pay me for the royalties I would have earned. But still, I would have imagined that the charger manufacturer would try to disclaimall liability for consequential damages. What it offered instead was a pretty good deal. So far as I could tell from the packaging, the deal was good in another way too: the insert contained no choice-of-law clause specifying some particular jurisdiction's law as governing any disputes; it contained no arbitration clause or any clause waiving the right of the purchaser to join a class action either.The bottom line is that the manufacturer of a product probably could mislead customers with the promise of a generous-sounding "lifetime warranty", only to provide less than the default rule in the fine print. The manufacturer of the particular item I bought didn't do that, which is at least a little surprising and made me feel good about my purchase. What's more, I've now had the charger for nearly a week and it hasn't broken yet. On the downside, I haven't heard a peep from George Lucas or JJ Abrams.

Monday, July 29, 2013

By Mike DorfPromo Number One: On Wednesday, Prof. Colb will be a guest on Victoria Moran's weekly one-hour radio show, Main Street Vegan, from 3 pm to 4 pm Eastern time on Unity Radio. They'll be talking about her book, Mind If I Order the Cheeseburger, and related topics. Instructions for how you can listen live (and call in!) or later download the podcast can be found here.

Promo Number Two: As I noted in a few posts over the last couple of weeks (here, here and here) tomorrow I'll be speaking on the Practicing Law Institute's annual Supreme Court Review panel. Other panelists include Prof. Colb, UC Irvine Dean Erwin Chemerinsky, Columbia Law Profs. Tom Merrill and Ted Shaw, NYU Law Prof. Bert Neuborne, and more. It's still not too late to sign up for a fun-filled day and CLE credit.

Okay, enough selling, now some thinking. I'll take the PLI program as my point of departure. Each year, the program covers the range of the Supreme Court docket but invariably we focus extra attention on the past year's "juiciest" cases. Here that will certainly mean the same-sex marriage cases (Perry and Windsor) and the two leading cases involving race: Shelby County v. Holder and Fisher v. Univ. of Texas. So now I want to raise the question of how much the Supreme Court matters, even in such "big" cases.

I raise this question out of a profound sense of ambivalence. On one hand, I think that the Court matters a lot in all sorts of subtle ways. I wouldn't have devoted my career to studying constitutional law if I thought it an unimportant topic.

On the other hand, I acknowledge that in the long run, Supreme Court decisions and even law more generally are more determined by what happens in society than vice-versa. Race relations is itself a classic example. There is a very substantial academic debate about the impact of Brown v. Board of Education on American race relations. One view, most forcefully argued by Gerald Rosenberg in his book The Hollow Hope: Can Courts Bring About Social Change?, says, in answer to the question posed by the subtitle, no. Rosenberg notes how the Court's mandate in Brown was largely ignored until the political system--spurred by the Civil Rights Movement--took up the cause of racial justice. The most vigorous defense of the courts, and the Supreme Court in particular, comes from the likes of Jack Greenberg, who argues that however limited Brown's direct impact, it was a crucial catalyst, serving as a moral beacon. Intriguingly, Michael Klarman offered a nuanced variant on the Greenberg thesis: Brown's indirect impact depended in substantial part on the fact that it sparked backlash against the ruling in the South, and that backlash catalyzed the growth of the Civil Rights Movement.

I think all of the foregoing accounts are right: Brown's direct impact was limited; it functioned as a beacon for some; and it sparked backlash for others, which in turn was catalytic for still others. The main point, though, is that in assessing the various different ways in which Brown played a role in American race relations, we are concerned much less with questions of legal doctrine than with questions about the complex interaction between one highly symbolic event and numerous other institutions and attitudes over the course of decades. It happens that the highly symbolic event here is a landmark Supreme Court decision, but the mode of analysis would not differ substantially if it were something else: Jesse Owens' performance in the Berlin Olympics, say, or the Soviet launch of Sputnik.

In thinking about legal developments over the course of the last few months, ask yourself which of the following is likely to have the most substantial, long-term impact on the real-world implementation of the law on race relations in the U.S.: (1) Fisher; (2) Shelby County; or (3) the George Zimmerman acquittal. Even though Fisher deals directly with a core question about which lawyers much fret, it seems the least likely to have a long-term impact, and not just because the decision was so interstitial. The Shelby County case could be highly significant, especially if Congress does not enact a new version of Section 4 of the Voting Rights Act that the Supreme Court sustains, or if the courts disallow the Justice Department's latest efforts to block voter-suppression measures through the VRA's "bail-in" provisions (as in Texas). But it's hard to imagine either case having the impact of the Zimmerman acquittal. Why? Because of the enormous media coverage and public interest of that case. And yet the Zimmerman verdict has no formal legal precedential value at all.

Law is not simply an epiphenomenal overlay of public opinion and the Supreme Court doesn't just follow the election returns, but in the complex interaction between the Supreme Court and society, it looks like there is greater influence from society to the Court than vice-versa, at least over the long run.

And that brings me to the same-sex marriage cases. We may never know the precise dynamic by which the Court ended up 5-4 to find no standing in the Prop 8 case. Maybe it really was just a product of the nine Justices' respective views about the litigation rights of ballot initiative sponsors. But there's at least a strong prima face case to be made that the pair of results in Windsor and Perry was exactly what one would expect from a cautious Court that sees its role as mostly ratifying and consolidating enlightened public opinion, rather than leading. Certainly Justice Ginsburg has been vocally saying exactly that for quite some time.

Justice Ginsburg has mostly been talking about abortion, arguing that the Court went too far too fast in Roe v. Wade. As I've said in the past, I disagree with both her descriptive and her normative claims about Roe, but I don't disagree with the broader point that courts cannot get too far out ahead of public opinion.

Friday, July 26, 2013

Through no particular grand plan, I found myself taking three trips to Europe this year, spending almost two of the last three months in various countries in Old Europe. In addition, I also took my first true vacation from blogging (and writing in general) ever, from late June until yesterday. Inevitably, I found myself returning with a new perspective on U.S. political debates. As yesterday's Verdict column and Dorf on Law post indicate, I have lately been thinking about our political dysfunction in the context of the centuries-long arc of the Enlightenment and its detractors.

Whatever value that longer perspective might bring to the table still leaves us with a question that was implied by the end of yesterday's post. I said that "[o]ne cannot respond with reason to those who have explicitly abandoned reason." As a commenter on that post asked: What then should Democrats (and other sane people) do, given that Republicans are now completely unhinged?

I do not have a fully satisfactory answer, but I have been thinking about this broad question, too, for some time. Here, I will simply describe why I am skeptical of all of the possible answers, while tentatively endorsing one promising approach. It is certainly too soon to say that nothing will work, but our current situation does suggest how precarious is the continuation of Enlightenment values in a world where the current Republican Party holds any power at all.

In my Verdict column, I argued that the Democrats' preferred strategy -- responding to stupid non-arguments with technocratic, cost-benefit answers (which has long been my preferred response, too) -- is ultimately not a good strategy. More broadly, I think that this year's emergence of the Republicans' full-on craziness has exposed the long-simmering problem of Democrats having embraced what people outside this country (and many US scholars) refer to as neoliberalism.

Neoliberalism is the label for the more humane version of conservative, market-obsessed corporate capitalism that Democrats have broadly embraced even as far back as FDR's presidency (but especially beginning with the Reagan era). There are hugely important differences between the New Democrats -- the Clinton- and Obama-styled idolators of balanced budgets and "economic efficiency" -- and less centrist Democrats, but those differences are often more a matter of degree than kind. And there is a very good reason that Democrats generally have taken this tack: liberal policies actually pass the cost-benefit test, over and over again, and are clearly superior to conservative policies, even on conservatives' own terms. This is why so many people have argued that FDR saved capitalism from itself (an argument that I revived in a Dorf on Law post earlier this year.)

As a style of argument, beating one's opponent on his own terms is not only clever, it is extremely satisfying. Moreover, it relieves us of the necessity of fighting over the terms of the debate. Unfortunately, the terms of debate within which neoliberalism operates are, at a deep level, nearly as hostile to the values of the Enlightenment as are the current crop of Republicans' more crudely stated attacks on knowledge and reason.

Consider mass education. It is tempting and easy to argue that educating as many people as possible is good for the economy, because failing to educate people reduces their productivity, leaving them unqualified to perform higher-paying jobs, and making it more likely that they will require public assistance. I have written entire scholarly articles based on this premise (seehere, for example), but I am hardly the only person to have noticed that the bumper sticker, "If you think education is expensive, try ignorance," captures an important truth.

Moreover, one would hardly want to be explicitly in favor of long-term waste. Wrapping oneself in the comfortable (though hardly warm) embrace of technocratic cost-benefit justification is a reasonable prophylactic against charges of being a bleeding heart, unrealistic dreamer (at best).

Even so, as soon as we start describing education in neoliberal terms, we accept the possibility that the facts on the ground will fail to justify universal education. We not only find even liberal politicians embracing obviously bad policies like No Child Left Behind, and we not only countenance the idea that "school choice" is a reasonable way to allow the wonders of the market to deal with failing schools (leaving neighborhoods without the cohesion provided by good public schools, where all children can be educated), but we at least tacitly consider the possibility of cutting loose some people who are "not worth it" in a cost-benefit calculation.

This reasoning also infects (less obviously) discussions over universal voting. If the question is whether the costs of universal voting are worth the benefits, then we can end up asking whether voter suppression laws might really be justified when other ways to prevent voter fraud (which is almost entirely nonexistent, but I digress) do not pass the cost-benefit test.

In short, the Democrats' embrace of neoliberalism has simply taken them away from firmly defending categorical values that deserve to be defended. Republicans are willing to tank the entire global economy, it seems, to defend their belief that even Republican-style health care reform should not become a functioning law. Democrats need to defend the values of the Enlightenment against the forces of the Dark Ages because Enlightenment values are better, not because they are more profitable.

In any case, as I argued yesterday, Democrats have a much better reason to abandon neoliberal arguments: Republicans are no longer engaging with them. It was one thing when both parties were slowly abandoning the fundamental values of the Age of Reason, through incremental compromises based on (incomplete) cost-benefit analyses (such as Clinton's welfare reform law), but now Democrats are showing up to talk like wonks, and the best Republicans will do is send Rep. Paul Ryan to make a mockery of wonk talk.

What else can Democrats do? Bruce Bartlett suggested to me off-blog that the Democrats' best approach is to mock and ridicule the Republicans. I feel great affinity for that approach, because it strips the Republicans of the dignity of being treated as if their arguments merit comment. When people are not being reasonable, there is no reasoning with them.

I am skeptical, however, that this will work. As I noted during the 2012 election debates, both Romney and Ryan took bald-faced lying to a new level, in a way that put the Democrats in a strange bind. Calling someone a liar used to be a strong statement in American politics. But when an entire presidential campaign is based on a series of lies, the potency of calling liars on their lies is severely diminished. Moreover, it gives the liars the opportunity to act as if their feelings are hurt by the accusation, garnering sympathy from a public that only hears a big meanie calling some sincere-looking man a liar.

This problem predates the Romney/Ryan campaign. Newt Gingrich, who did so much to degrade American political life (beginning in the House of Representatives, but going far beyond), gave Republicans the strategy of using extreme words -- "pathetic," "hateful," "treacherous," and so on -- to describe everything the Democrats did. The result has been that when Democrats use those words in contexts where they actually fit, it merely sounds like the same old politics. And as I and others have argued many times, Republicans benefit when the public tunes out.

If there is not a third option -- something other than engaging intellectually with those who insist on being disengaged, or ridiculing their disengagement -- then we are stuck choosing among those two diminished possibilities. Certainly, there is no reason to embrace only one option for all occasions. I do, however, think that the better third option (not a "third way," which is the political brand for the worst kind of me-too Clintonian Republicanism) is simply to make affirmative arguments for Enlightenment values, in positive terms that capture the importance of the thinking that brought us out of the Dark Ages.

The response to the Roberts Court's decision on the Voting Rights Act is a good start. Although there must inevitably be technocratic aspects to the ground battles to come (including Eric Holder's very welcome announcement yesterday that the Justice Department will pursue action against Texas's recent, extreme efforts at minority disenfranchisement), the Democrats have done a very good job of making this debate about universal suffrage, not about cost-benefit analyses.

Again, I am unsatisfied with all of the available responses to Republicans' increased craziness. I will surely return to these questions in future posts, but I will stop here for now.

Thursday, July 25, 2013

Two months ago, while still working at my gig in Vienna, I posted some thoughts about that city's wonderful public transportation system (as well as a few comments about vegan eating in the city that invented wiener schnitzel). At the end of that post, I noted that I would soon return to Europe for a honeymoon, with stops in London, Edinburgh, Dublin, Berlin, and Stockholm. Anticipating that I would become obsessed with the economies and infrastructures of each of those cities, I suggested that my honeymoon would involve "[m]ore social science field work."

Well, we are back, and my prediction was only mildly true. Under the right circumstances, even I am able to set aside my professional interests and just enjoy the moment. Even so, I did find myself at one point confronted with an unexpected situation, which led me to think in a different way about some of the issues on which I write. While on a tour bus in Edinburgh, the tour guide surprised me by interspersing some commentary on the Scottish Enlightenment into the more standard tourist fare. (An example of the latter: At a statue honoring England's King George IV, we learned that IV was quite rotund, and that the children's rhyme "Georgie Porgie" is about him and a misbegotten kissing incident).

The tour guide's comments about the Enlightenment referred specifically to a commitment to expanding education beyond the privileged classes. She noted that Oxford and Cambridge, through at least the 17th Century, limited their enrollments to members of the Church of England, and of course conducted their classes in Latin. In Scotland at the same time, there were five universities (in a country with about one-tenth of the population of England), and Scotland was apparently the first country in which higher education was conducted in the local language. In addition, Scottish thinkers were in the forefront of advancing universal education at the primary and secondary levels.

I assume that the tour guide was at least shading the facts to make her country look especially good. Because Scotland is the ancestral land of Buchanans, I am all too happy to go along with that effort. National pride aside, however, the tour guide's comments have caused me to ponder for the last several weeks just what the Enlightenment was all about, and -- much more to the point -- just how profoundly the Enlightenment's values are under assault in modern society.

Accordingly, in my Verdict column today, I argue that the modern conservative movement, especially after its full takeover of the Republican Party (purging all elements of moderation from its ranks) has shown itself to be the enemy not just of supposed Sixties hedonism, or of FDR's expansion of the federal government's role in the economy, or even of the Progressive Era's introduction of minimal economic and social regulation. They are against the Enlightenment itself.

I specifically comment on Republicans' efforts to eliminate government limitations on private power, to narrow the franchise, and to eliminate public (and, ultimately, universal) education. More to the point, I argue that the Age of Reason is under attack by Republicans. I am, of course, hardly the first person to note the fact- and argument-free environment that is the modern conservative movement, with its insistence that climate change is a hoax, and its bizarre claim that creationism should be treated the same as evolution in science curricula.

Many conservatives, I suspect, would laugh off the global warming deniers and the creationists, yet still claim that they are the "people with ideas," and thus reject the notion that they are part of the attack on Reason. The problem is that the last five years have demonstrated again and again that even the non-religious part of the conservative movement simply does not care about facts or logic.

The most obvious example is the Right's unalterable commitment to fiscal austerity. The two key arguments in favor of austerity -- "expansionary austerity," and the supposed 90% debt threshold -- were embraced by Republicans with great fervor. Yet when the underpinnings of both theories (papers by Alesina and Ardagna, and Reinhart and Rogoff, respectively) collapsed under academic scrutiny, not a single Republican was willing to reconsider the evidence. Notably, the academics who create the support network for Republican policies have all fallen in line, with none of them admitting that anything has changed. (Readers who follow Paul Krugman's blog know that Republican-committed economists are now insisting that the Fed's asset purchases are still awful, even after those economists spent five years predicting hyper-inflation that never materialized. Now, they are simply making unintelligible arguments.)

And that is at the highest level of debate. People with degrees from the best universities, and who teach at those very universities, are now so committed to the Republican agenda that they have abandoned reasoned argument. If things are that bad at the top, what is it like in the trenches? Certainly, the political leadership of the Republican Party has abandoned any pretense that they are responding to arguments. They simply have a rotating list of lies about "Washington's spending problem" and "the inevitable debt crisis," which are impervious to evidence or logic.

At the back-bencher level, it is even more insane. Last year, a then-freshman House Republican complained about the Census. First, he managed to be simply incoherent: "This is a program that intrudes on people’s lives, just like the Environmental Protection Agency or the bank regulators." Bank regulators intrude on people's lives? Oh well, why let logic stand in the way of a talking point? Even better, though, the congressman then said: "We’re spending $70 per person to fill this out. That’s just not cost
effective, especially since in the end this is not a
scientific survey. It’s a random survey." (The reporter who wrote the article then helpfully added: "In fact, the randomness of the survey is precisely what makes the survey scientific, statistical experts say.")

This refusal to think clearly about reality is, of course, also showing up in tax discourse -- and not even solely among obvious partisans. Earlier this week, a respected tax journal published a piece that was a parody of thought-free ranting about taxes. A top-level partner in a major NYC law firm (who has held national positions of authority regarding tax practice) argued against a statistical study that had concluded that state taxes are not determinative of decisions by people to move into or out of a state. How does he know they are wrong? Whereas the study's academic author's "conclusions are apparently based on empirical studies and computer models," they are wrong, because he has "experience as a practitioner," so that "I can assure you that taxes often play a major role in these decisions."

It gets worse (or better, if you like grim humor): "There are limits on what economists' computers can do. It
is impossible to do this, no matter how many computer simulations one
does. ... The economists can play all
the number games they want to with their computers, their calculus, and
their fancy equations, but they are still living in their ivory towers." Yes, scientists with their computers and "fancy equations" are nothing compared to what we can observe on the ground. That is how I know that the Earth is not round, because I walk long distances every day, and I have never yet found myself upside down.

I am not, of course, arguing that every economic study is true. I am, rather obviously, saying that one can disagree with an economist's conclusions without sounding like a buffoon. There has long been a strain of anti-intellectualism in American life, with attacks on the ivory tower and "fancy-schmancy degrees" (although it really is a generational quirk for older people still to think that you can scare people by talking about how the bad guys use computers). This is bizarre and indefensible.

The larger point, however, is that it used to be good sport to notice when occasionally some unknown congressman, or some random legal practitioner, would say something truly embarrassing. Now, however, it is impossible to distinguish that kind of unreasoning silliness from what is coming out of the mouths of the leaders of the Republican Party -- and even their academic enablers. One cannot respond with reason to those who have explicitly abandoned reason.

Wednesday, July 24, 2013

In my column for this week, I wrote about the topic of sexual surrogacy, an arrangement in which a sex therapist has sex with a patient in exchange for payment. In my column, I discuss the question whether sexual surrogacy is distinguishable from prostitution and how we ought to think about the practice, from a legal and ethical standpoint. One of the things that bothers me about prostitution (and thus, about sexual surrogacy as well) is the fact that, almost by definition, the job involves someone who would prefer not to be having sex with a particular person nonetheless having sex with him or her because it is part of her (or his) job. In other words, someone is having unwanted sex.

As a college student, I worked for over a year on a study of stress and pregnancy at Columbia Psychiatric Institute. The work involved conducting two telephone interviews of each of many pregnant women, each interview lasting approximately one hour. I still remember two of the many questions that I had to ask each woman during one of the interviews: first, how often was she having sex? And second, was that sexual frequency just right, more often, or less often than she'd like? (This is a paraphrase). Many of the women told me that the frequency with which they were having sex was "more often" than they would have liked. In other words, many of the women to whom I spoke were, on numerous occasions, having sex that they would have preferred not to have.

In 2008, Robin West wrote an article, entitled Sex, Law, and Consent, in which she discussed this phenomenon. She made it very clear that unwanted sex is not the same thing as rape, and she was not proposing that unwanted sex ought to be criminalized. She affirmed strongly that there is an important distinction between nonconsensual sex, on the one hand, and unwanted sex, on the other. Unwanted sex occurs when one of the parties to a sexual interaction voluntarily participates in a sexual encounter in which she did not want to participate. She said "yes" even though she would have preferred to say no. Nonconsensual sex involves a participant who does not agree to participate in sex but instead has it imposed on her by her "partner."

When people complain about the criminality of acquaintance rape, they seem sometimes to have confused unwanted sex with nonconsensual sex. I say this because I hear questions like "how is the guy supposed to read her mind?" when, in reality, the "guy" need not read minds but simply hear his partner's words. If "no" is taken to mean what it says, then the sex stops (or does not start) at the very moment that the word is uttered. It is, ironically, the very people who challenge the legitimacy of acquantance rape statutes that want to argue that "no" sometimes mean "maybe" or "yes" and that accused rapists were somehow able to read the minds of their alleged victims and could tell that their advances were actually welcome.

In any event, in a case of unwanted but consensual sex, both participants in the sexual interaction are willing participants; it is just that one of them does not really want to be a participant. Why does "unwanted sex" occur? Undoubtedly, it occurs for many reasons. Sometimes, it is because the person giving consent is worried that her (or his) partner might lose interest in the relationship if she (or he) rejects a sexual overture. Other times, the person giving consent may believe that it is what she (or he) is "supposed" to do. In talking with the pregant women in the Columbia study, I suspected that this was what was motivating them. They did not seem to feel "entitled" to refuse to have sex with their partners, notwithstanding their lack of desire (and sometimes even the nausea they felt, due to their pregnancies).

As West suggests, unwanted sex is a problem, though not the sort of problem that should be addressed by legal prohibitions (a proposition with which I agree). In response to this view, some might point out that people regularly do all sorts of things that they would prefer not to do, out of a sense of "obligation" or generosity toward a partner. Examples can include cleaning the floors, cooking, washing dishes, taking out the garbage, mowing the lawn, etc. Yet it is difficult to imagine anyone seriously contending that as a categorical matter, consensual but "unwanted dish-washing" or "unwanted lawn-mowing" is a problem worthy of critical analysis. If someone asked most people, "why do you do the dishes?" they would likely say something along the lines of "because it needs to be done and my partner does the cooking" rather than "because doing dishes is, for me, a source of great pleasure, gratification, and joy."

So why should sex be different? If it's fine for people to take out the garbage so their partners will cook dinner, why isn't it fine for people to have sex for similar reasons? Perhaps it is fine in just this way. Yet I share West's misgivings about unwanted sex. For the most part, I think it is unfortunate that people have sex that they would prefer not to have. Unlike washing dishes, a person having sex is expected to be having a good time of it. If he or she is not having a good time, then either (a) he or she is faking having a good time for his or her partner's benefit, or (b) he or she is making his or her displeasure plain, but his or her partner either does not notice or does not care.

If one of the people in the interaction has to fake pleasure, then the dishonesty of the encounter is disturbing. No one feels betrayed by a partner who "fakes" enjoying washing the dishes, but a person is likely to feel quite betrayed upon learning that his or her partner found their sexual encounter dull and uninspiring but was only pretending to enjoy it. And if, on the other hand, the person is plainly not enjoying himself or herself, and this fact is irrelevant to the partner, then that disregard -- while qualititatively distinct from the disregard inherent in nonconsensual sex -- seems at least a distant cousin of it.

In the case of prostitution, of course, both of these things are routinely going to be happening -- the prostitute is likely pretending that the john is giving her (or him) great erotic pleausre, even though that is almost certainly not the case -- and the john, who must realize, despite apperances, that the prostitute is not actually enjoying herself (or himself) is content to continue the sexual encounter without regard to that fact. In a sense, then, the john is using the prostitute as a mechanical tool for sexual gratification, the very definition of a sexual object. And to the extent that sexual surrogacy shares this feature, it is troubling, as unwanted sex is, and in the same ways.

As I suggested here and in my column, I do not support criminalization of prostitution or of sexual surrogacy. Nonetheless, I regard neither one as positively promoting sexual autonomy, so long as one of the participants is doing it for the money.

Tuesday, July 23, 2013

By Mike DorfIn a NYTimes Op-Ed last week, former Attorney General Alberto Gonzales and immigration attorney David Strange argue that a three-decades-old decision of the U.S. Court of Appeals for the Ninth Circuit--Adams v. Howerton--obligates the Obama Administration to exclude same-sex spouses of U.S. citizens at the border, notwithstanding the Supreme Court’s invalidation of the Defense of Marriage Act in the Windsor case last month. I think they are wrong for a number of reasons.(1) Adams is not and never was binding on the whole country. At most it was binding in the states comprising the Ninth Circuit--although even then, there is at least some authority for the executive branch adopting a uniform national policy even though it contradicts the law in particular circuits. I'm not a big fan of this "non-compliance" approach when (as during the Reagan Administration) it puts individuals to the expense of bringing lawsuits to vindicate their rights, but it seems to me quite different when, as here, the government would be providing people with more rights than the court in some circuit says they're entitled to.(2) Adams was based in part on deference to the executive branch. The Ninth Circuit stated:

Where a statute has been interpreted by the agency charged with its enforcement, we are ordinarily required to accord substantial deference to that construction, and should follow it "unless there are compelling indications that it is wrong." [citations]. Thus, we must be mindful that the INS, in carrying out its broad responsibilities, has interpreted the term "spouse" to exclude a person entering a homosexual marriage.

To be sure, the Ninth Circuit went on to find independent support for the conclusion that the statute, standing alone, was sufficient to render same-sex spouses ineligible for the immigration status that otherwise-similarly-situated opposite-sex spouses are entitled to. But the Ninth Circuit did not say--because it had no occasion to say--whether the statute was so clear that it would render the Obama Administration's position invalid.(3) Windsor supersedes Adams. Gonzales and Strange argue that Windsor is irrelevant because Adams relied on the immigration statute itself, not the Defense of Marriage Act, for its conclusion that in the immigration context, Congress meant "spouse" to cover only traditional opposite-sex spouses. Perhaps Windsor should have left that option open but it didn't. The Court's analysis proceeded in three steps: (i) The Court acknowledged that Congress has, in some instances, expressly adopted a federal definition of marriage (or other domestic relations terms) in the exercise of its enumerated powers; but (ii) went on to say that, in light of the states' traditional reserved power over domestic relations, federal courts have treated federal law as incorporating state law definitions of marriage; and (iii) invalidated DOMA on equal protection grounds. Crucially, the Court then simply affirmed the Second Circuit ruling, which in turn affirmed the district court ruling that treated Windsor as a spouse for purposes of federal taxation law. The Court did not undertake any further inquiry into whether the Congress that enacted the estate tax meant to limit the spousal exception to opposite-sex spouses. Consequently, and in light of (i), as a matter of statutory construction, Windsor is best read for the proposition that where a federal statute uses the word "spouse" but does not expressly indicate whether it thereby means to include or exclude same-sex spouses, it should be read to incorporate state law. (I say this is how to read Windsor as a matter of statutory construction because, as a matter of constitutional equal protection, Windsor may have implications for whether state law must recognize SSM. In dissent, Justice Scalia thought it would, while CJ Roberts thought it should not. Time will tell.)Therefore, to the extent that Gonzales and Strange are making the argument that even absent DOMA, each federal statute that uses the term spouse must be parsed to determine whether the Congress that enacted it meant to include or exclude same-sex spouses, I think they are plainly wrong. Windsor establishes a presumption in favor of incorporation of state law that only express statutory language can overcome. And the federal immigration law contains no relevant express statutory language.(4) Perhaps, however, Gonzales and Strange could be read to say that while Windsor generally means that federal law follows state law on the definition of marriage, immigration is different. They refer to the so-called "plenary power doctrine," stating that "Congress has almost total power over immigration, and its decisions in this realm are subject to limited judicial review." Fair enough, but that still leaves us with the question of what Congress did with respect to immigration. And it's important to remember that Congress no more expressly barred same-sex spouses here than it did in the estate tax.Gonzales and Strange endorse the reasoning of the 1982 Ninth Circuit opinion in Adams, but that opinion in turn relied on the subjective animus of Congress. The Ninth Circuit said that when, in 1965, Congress expressly made an alien's homosexuality a ground for affirmative exclusion from the country, even if he or she was otherwise eligible to immigrate, it could not possibly have also meant to include same-sex spouses under the preferential treatment for family members of citizens. I think that's undoubtedly a fair inference insofar as inferring the subjective intent of the Congress that wrote the current version of the immigration statute is concerned. But there's nothing in that line of analysis that distinguishes immigration law from any other federal law. The Congresses that wrote "spouse" in the thousand-some-odd other federal statutes also undoubtedly had in mind to exclude same-sex spouses. But unless they said so expressly--and without animus, if that is possible--under Windsor, state law prevails.(5) My point in (4) is that simply as a matter of post-Windsor statutory construction, same-sex spouses should count as spouses for immigration purposes. The plenary power doctrine might come into play if, contrary to that analysis, one were to say that Congress did define spouse in the immigration context as limited to opposite-sex spouses. At that point, the question would arise whether an equal protection challenge could prevail. There is authority for upholding immigration laws against challenges based in constitutional rights when laws addressing other topics would be invalidated based on challenges of equal strength. I think some of that authority is misguided, but Gonzales and Strange are right that it exists. However, as I've endeavored to demonstrate, it's largely irrelevant, because one doesn't get to the constitutional question: As a matter of statutory construction, Windsor means that absent express language otherwise, spouse includes state-recognized same-sex spouse.(6) At the very least, the Administration's policy to that effect is within the realm of permissible interpretations, and thus entitled to deference from the courts. Given his association with a past Administration that believed strongly in judicial deference to executive authority, Alberto Gonzales ought to recognize as much.

Monday, July 22, 2013

By Mike Dorf
This is yet another post reacting to one of the relatively minor cases the SCOTUS decided last Term. Last week, I discussed two Takings cases (here and here) because I'm scheduled to make a presentation on those cases at the Practicing Law Institute Supreme Court Review session next week. I'm also giving a presentation on class actions. Most of that presentation will focus on the cases I discussed in a column in April, but in the interest of thoroughness, I've read all of the cases that relate to class actions. One such pretty minor case is Genesis Healthcare Corp. v. Symczyk, which is not directly about class actions but about a similar mechanism for representative litigation under a provision of the Fair Labor Standards Act. That provision allows an individual with a FLSA claim to sue on behalf of herself as well as "similarly situated" individuals. The question in the case was whether, if the individual plaintiff's claims have been mooted, she can continue on behalf of the absent similarly situated parties. The majority, in an opinion by Justice Thomas, said no.

Perhaps not surprisingly, the Court divided 5-4 ideologically, with the conservatives joining Justice Thomas and the liberals joining a dissent by Justice Kagan. That's not surprising because, as I noted in the column linked above, the Court frequently divides ideologically about class actions--with liberals frequently regarding them as a means by which persons who could not otherwise afford to litigate can get some measure of justice, and conservatives frequently regarding them as a means by which opportunistic plaintiffs' lawyers extort money from businesses.

What was at least a little surprising was Justice Kagan's tone in dissent, which was extremely snarky. I'm not surprised that Justice Kagan was snarky. As I've noted before, she can be Scalia-esque in going after her colleagues. But in Genesis Healthcare, much of the snark is targeted at the lower federal courts. To see why this is odd--and arguably unfair--requires a bit of context for the case.

The district court and the appeals court in Genesis Healthcare found that the plaintiff's individual claim was moot because she rejected--by failing to accept before the expiration of--an offer of judgment by the defendant that, by its terms, would have given her all of the individual relief she could have gotten by litigating. The hard question for the courts was whether that mooting of the individual claim should be deemed to disqualify the individual plaintiff from representing similarly situated others. If so, the plaintiff argued, that would permit defendants to "pick off" individual litigants, thus frustrating the group representation policy of the FLSA. Nonetheless, the majority found that the mootness problem was insurmountable.

Justice Kagan and the dissenters did not reach the "picking off" problem because she argued in her dissent that the assumption of mootness was simply wrong. And not just wrong but crazy, stupid wrong. So wrong that its wrongness would be obvious to "every first-year law student." The-appeals-courts-should-be-ashamed-of-themselves wrong. Or as Justice Kagan put it:

So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theo­ry. And a note to all other courts of appeals: Don’t try this at home.

Justice Kagan's core problem with what the Third Circuit did is this: Federal Rule of Civil Procedure 68 authorizes a defendant to make an "offer of judgment"--essentially a formal settlement offer--and if the plaintiff refuses to accept the R. 68 offer but ends up achieving less at trial than the offer of judgment, then the plaintiff bears costs for the intervening period. But, Justice Kagan points out, part (b) of R. 68 permits a plaintiff to reject an offer of settlement and part (d) makes clear that the case then goes forward, with the penalty of costs, not dismissal on mootness grounds. And so, Justice Kagan says, Rule 68 "provides no appropriate mechanism for a court to terminate a lawsuit without the plaintiff’s consent."

I read that and thought to myself: Can the Third Circuit judges and the judges in the other circuits that apply the same approach really be the idiots that Justice Kagan and the other dissenters think they are? So I read the lower court opinion and some of the cases cited therein, and lo and behold, I discovered that the appeals court judges are not idiots. None of the cases says that Rule 68 authorizes a judge to dismiss a case as moot based on a rejected settlement offer. What they say is that general principles authorize a judge to dismiss a case when the defendant offers the plaintiff everything to which the plaintiff is entitled.

Indeed, even Justice Kagan seems to acknowledge as much. After mocking the circuit courts for reading Rule 68 in a way that none of them read it, she considers the possibility that courts have "inherent authority" to dismiss a case as moot based on an offer of full settlement. She seems to say no, but almost immediately, there is a crucial admission. Justice Kagan writes:

To be sure, a court has discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant uncondi­tionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.

Why isn't that this very case? Justice Kagan goes on:

But the court may not take that tack when the supposed capitulation in fact fails to give the plaintiff all the law authorizes and she has sought. And a judgment satisfying an individual claim does not give a plaintiff ... exercising her right to sue on behalf of other employees all that she has requested in the complaint (i.e., relief for the class).

(Citations and internal quotation marks omitted.)

Right, but now it's not at all clear that Justice Kagan is making anything but a semantic point. The majority asks whether a claim that is moot with respect to the individual claims is nonetheless still live with respect to the representative claims. Justice Kagan says that so long as there are representative claims, the individual claims aren't moot. But isn't that just another way of answering the same question that the majority answers? The majority thinks that settlement of the individual claims renders the plaintiff an improper representative of the similarly situated absentees. The dissent thinks that the individual can still represent the absent similarly situated parties. Fair enough. Yet it's hard to see why that substantive difference of opinion warrants the mocking tone from Justice Kagan.

Justice Kagan does point to one legitimate oddity in the lower court case law: If a settlement offer for everything the plaintiff could get through litigation moots a case, it should only do so if the defendant in fact makes good on the offer--i.e., if the court tells the plaintiff that she must accept the defendant's offer. The mere making of the offer should not be enough to moot the case. Note, though, that nearly all of the circuit court cases I found that recite the rule at issue are in fact cases in which the plaintiff did accept the offer but then argued that ongoing issues made the case not moot. It does appear that the district court in Genesis itself ordered dismissal without ordering the defendant to pay up on its offer, but if that's the core of Justice Kagan's complaint, then she and the other dissenters should have said that a mootness dismissal must come with payment, not that a mootness dismissal is absurd.

Bottom Line: Justice Kagan comes across as a bit of a bully in this dissent. The entertainment value of such bullying is dubious in general but doubly dubious where, as here, it appears largely unjustified as a substantive matter.

Thursday, July 18, 2013

By Mike Dorf
As I noted yesterday, I'm in the process of reading some of the "lesser" SCOTUS opinions that I skipped over in the excitement of the end of the Term. Here's a dispatch on one such opinion, Horne v. Dep't of Agriculture.

Facts and Procedural Posture: The Hornes grow grapes and process them into raisins. Pursuant to a Depression-era statute, the federal Dep't of Agriculture (DOA) regulates raisin producers. It brought agency proceedings against the Hornes for failure to comply with various requirements. The Hornes defended on the ground that they are not "handlers" of raisins within the meaning of the relevant statute and regs, and thus not subject to the requirements. They also argued that one aspect of regulation--the requirement that they turn over a percentage of their raisins to the DOA--was an unconstitutional taking of property without just compensation. They lost in the agency and in the federal district court and the Ninth Circuit. The latter rejected their statutory/admin claims on the merits, finding that they were handlers. The Ninth Circuit declined to reach the Takings claim, however, on the ground that it could only be brought in the Court of Claims. The Ninth Circuit said that the Takings claim arose in the Hornes' capacity as producers rather than handlers, and so needed to go to a separate proceeding.

The Supreme Court unanimously reversed, in an opinion by Justice Thomas. The Court said that while the Hornes denied that they were handlers for statutory/regulatory purposes, their constitutional argument was conditional: if they are handlers, they say, then the reg is a Taking. I'm not sure that's strictly correct, but the result makes eminent sense. As Justice Thomas says, it would be wasteful for one court to find that the Hornes owe money as a fine and owe raisins pursuant to the supply-suppression program, but then to have them file in another court that adjudicates the Takings issue separately, so that they may get some of their money and/or raisins back.

Why is this interesting? It's not, except for the fact that reading the opinion, I was struck by how much detail the Court provided about the DOA program for regulating the supply of raisins. Some of that detail was arguably needed to provide context for the distinction between the statutory/regulatory claim about the handler/producer dichotomy and the Takings claim. But most of it seemed gratuitous.

Reading the opinion I developed the strong feeling that the Court--or at least Justice Thomas with the acquiescence of the other Justices--thinks that the DOA program is unnecessary bordering on idiotic. This program is in addition to federal and state regulation of grape growing to ensure food safety and honest labeling. Do we really need the federal government limiting the supply of raisins to ensure a stable return on investment for grape farmers?

My answer to that question would be this: I understand that the vagaries of weather and credit mean that agriculture is inherently subject to greater production uncertainty than many other lines of business; accordingly, production quotas may make sense as a means of stabilizing prices, even though we generally rely on the free market to set prices in response to supply and demand; whether the system of price supports is, all things considered, cost-justified, or is instead more in the nature of a government scheme for facilitating a cartel, is a complicated empirical and policy question. Accordingly, the wisdom of a system of agricultural price supports should be left to the political branches.
Now, nothing in the Supreme Court's opinion in Horne directly contradicts any of that. Moreover, Justice Thomas has been especially clear that he has no intention of returning to the Lochner era of searching judicial review of economic regulation. Nonetheless, in tone if not in content, I detect in Horne something between bemusement and annoyance at the fact that the federal government is deeply involved in protecting the nation from a raisin glut.

Earlier today, when I published an essay in Slate about my experience with mental illness,
I might have seemed brave. But deep
inside, I was terrified.

Despite my fear, I decided to publish the piece, anyway,
mostly because I had spent most of my life, and all of my life in academia, living
in fear. Worrying. Panicking.

My friend Mark McKenna,
an IP professor at Notre Dame, was patient and kind in listening to me debate
whether or not to “come out” of the closet about my anxiety disorder. He asked me why I wanted to do it. I told him that I wanted to help others in
the academy who were not (as many might have thought) merely eccentric or socially
awkward, but who were – like me – living with a real disease. I wanted to encourage them to seek
treatment. I wanted to tell them that
they were not alone.

I wanted to make the tenure process less terrifying.

But Mark pointed out to me that there was one more benefit
to telling my story: I would allow
people I respected to really know me. And
the inestimable Dahlia
Lithwick suggested that I might get to know some of you better, too, as you
told me your stories.

As Sully answered Mike’s “Why did you never tell me this
before?” question in Monsters University,
“We were never really friends before.”

Wednesday, July 17, 2013

By Mike DorfIn the excitement of the Supreme Court's end-of-Term decisions regarding affirmative action, same-sex marriage and voting rights last month, I did not have occasion to read all of its opinions in the somewhat lower-profile cases. I am now reading some of those cases, partly simply to keep up and partly in preparation for my annual appearance later this month on the Practicing Law Institute's Supreme Court Review session in NYC. One case I'll be discussing is Koontz v. St. Johns River Water Management Dist.,which did not get much media attention because it was handed down the same day that the Court invalidated Section 4 of the Voting Rights Act. But Koontz is an important and interesting case.The Takings Clause of the Fifth Amendment (as incorporated against states and their subdivisions by the Fourteenth Amendment) requires government to pay just compensation to property owners whose property the government takes using the power of eminent domain. What if, instead of taking title to private property, the government simply regulates how a property owner may use his or her property? Is that a taking? As Justice Oliver W. Holmes, Jr. famously but unhelpfully said in the 1922 case of Penn Coal Co. v. Mahon, "while property may be regulated to a certain extent,
if regulation goes too far it will be recognized as ataking." Since the Supreme Court's retreat from aggressive review of economic regulation under the Due Process Clauses in the late 1930s, the Supreme Court has generally been quite permissive: Government can go quite far in regulating without going too far.However, the Rehnquist Court developed an important exception to deferential review under the Takings Clause. In a pair of cases with names that, conveniently enough, rhyme with one another--the Nollan case and the Dolan case--the Court established a tougher rule for a certain kind of regulation: Where the government conditions a land-use permit on a property owner ceding some property interest (for example, by granting a public easement or forgoing the right to develop some sub-plot of land), that condition is invalid, and thus the property owner is entitled to just compensation, unless the required exaction has a "nexus" to the permitted use and is "roughly proportionate" to the harm from the land use that the government seeks to mitigate.The Koontz case presented two issues: First, whether the Nollan/Dolan rule applies to circumstances in which, in the face of a demand for some property interest as a condition on development, the property owner refuses rather than accedes to the demand? And second, whether the Nollan/Dolan rule applies where the government gives the property owner the option of paying a sum of money instead of ceding the property interest. The Court unanimously agreed that the answer to the first question is yes: It's the government demand that creates the potential constitutional violation, regardless of whether the property owner accedes to it. But the Court divided 5-4 on ideological grounds with respect to the second question: The conservative majority (in an opinion by Justice Alito) said that a monetary exaction triggers Nollan/Dolan, whereas the liberals (in a dissent by Justice Kagan) thought that money is different from real property.Who's right? Well, there are slippery slopes down both sides of the mountain. Justice Alito and the majority rightly worry that if the government can avoid the Nollan/Dolan requirements of nexus and rough proportionality simply by offering the property owner the option of paying a fee for development, then by pricing the fee high enough, the Nollan/Dolan rule will cease to be effective at all. But Justice Kagan and the dissent are also right that--as the majority reaffirms--taxes and fees are not Takings subject to Nollan/Dolan; and, the dissent goes on, the majority offers no test for distinguishing permissible taxes and fees from monetary exactions in lieu of property demands that trigger Nollan/Dolan.The majority responds with the contention that the dissent's worry is more theoretical than real--that in reality governments do not attempt to disguise exactions as taxes or fees. The dissent in turn contends that the lower court cases the majority cites actually show considerable disagreement over how to draw this particular line. And so on.The real problem, in my view, is traceable to the Takings Clause itself, which cannot encompass most taxes. If a tax is a taking, then it is ineffective as a tax, for a taking requires just compensation, which would mean that the government could only collect the tax if it then gave back the money it collected. Yet there must be some category of government appropriations that are outside of the taxing power in order for the Takings Clause to have any bite. How to draw a line?One possibility--suggested by some of the commentary on the Affordable Care Act last year--is that the political process will sort this out. Politicians, in this view, will be extremely reluctant to vote for anything called a tax and thus, will not attempt to disguise Takings as taxes. But given the fact that "fees" are also not considered Takings and the fact that courts tend to adopt a functional approach to what counts as a tax, it's not clear to me that politics alone will police the line that the majority in Koontz necessitates.Moreover, it is often argued that the Takings Clause serves a kind of equality principle: Government can tax people but it must do so through even-handed laws of general applicability; it cannot single out particular individuals as revenue sources on an ad hoc basis. Interestingly, the dissent points to some state court decisions that apply Nollan and Dolan "only to permitting fees that are imposed ad hoc, and not to fees that are generally applicable." Given the underlying rationale for the Takings Clause, I would not be surprised to see a future majority opinion adopt this line as a matter of federal law.

Tuesday, July 16, 2013

By Mike Dorf
In my post on Sunday, I asked whether there is a logical basis for drawing the particular line that Sen. Harry Reid's plan to end the filibuster for executive nominees would have drawn: between executive nominees, on the one hand, and judicial nominees plus legislation on the other. In that post, I kept my analysis strictly non-partisan. To the extent that I considered party effects, I did so generically, asking about the party that controls the Senate, the party to which the President belongs, etc., rather than looking at it in terms of the Democratic and Republican parties.

In this post, I want to shift gears a bit and ask whether the filibuster is systematically better for one or the other of the particular parties. My analysis is prompted by the deal that the Senators have just reached to avert filibuster reform (for now). To judge from the reports, it looks like the Republicans blinked. Faced with resolve by the Democrats to eliminate the filibuster for executive nominees, the Republicans agreed to imminent votes for most of the stalled Obama executive nominees. The question is why.

The most obvious answer is that Republicans are currently in the minority in the Senate and so they currently value the filibuster more than Democrats do. In this view, support for or opposition to the filibuster is simply a matter of current politics. There's a lot to be said for this view, as you can verify by looking at what Senators tend to say about the filibuster. When a Senator's party is in the minority, he or she tends to praise the filibuster as a vital Senate tradition that ensures deliberation; when a Senator's party is in the majority, he or she tends to sound like more of a populist, complaining about the other side's use of the filibuster to frustrate the will of the majority.

However, filibuster politics is not only about the now. If it were, then the filibuster could not have survived as long as it has. Some party in the majority would have "gone nuclear" by now if all the Senators were thinking about was who benefits in the immediate term. Yet it's clear that Senators do worry about reciprocity, about what will happen in a future in which a current majority is in the minority.

Some of this fretting is probably about the pleasantness or unpleasantness of daily life. By most accounts, the Senate is a better place to work than the House of Representatives. It's not just more prestigious to be one of a hundred than to be one of 435. Nor is it that you only have to run for re-election every six years rather than every two (which, in practice, means more or less constantly). Those are important factors but in addition, the House is a much more majoritarian body in which members of the minority party have very limited ability to influence policy. By contrast, minority party Senators are important--and because many Senators are former Representatives, they understand how much less pleasant life can be in a body with less opportunity for minority members to influence outcomes. Thus, there is likely always some consideration of what will happen when the Senate changes hands.

But is there a permanent systematic bias either for or against the filibuster by each party? I think the answer is yes. Other things being equal, I think that Republicans (should) like the filibuster more than Democrats do. The reason is simple: Other things being equal, Democrats want the government to do things while Republicans want government to do nothing, and the filibuster makes it harder for the government to do anything.

To be sure, other things aren't always equal. There are plenty of contexts in which Republicans favor action and the Democrats favor inaction (e.g., passage of laws restricting abortion; confirmation of judges who will gut civil rights statutes; repeal of environmental regulation; etc.), and so any given Democrat might think that retention of the filibuster is justified, all things considered. My point is simply that overall the Republicans get more out of the filibuster than the Democrats do. That fact may have played some role in the Republicans blinking.

Monday, July 15, 2013

By Mike Dorf
My latest Verdict column addresses the procedural question raised by the Supreme Court mandamus petition of Electronic Privacy Information Center (EPIC) challenging the government's collection of Verizon customer "metadata." I explain why the Court is arguably without jurisdiction to grant the petition and, in any event, almost certainly won't grant it as a matter of its equitable discretion. For the latter point (spoiler alert!), I rely on the fact that EPIC has other options available: In particular, it can simply sue Verizon and/or government officials for injunctive relief in federal district court.

Here I want to raise a question that my analysis in the column suggests. Suppose Congress thinks that federal district court litigation of FISA court orders should also be foreclosed and accordingly strips all courts, including the U.S. Supreme Court, of the authority to entertain challenges to NSA surveillance. Would that be permissible?

Alumni of the federal courts class--which I regard as the most important course in law school for anyone who wants to litigate in the federal courts, but then, I teach it, so take that with a grain of salt--will instantly recognize the question as the "holy grail" of the subject area. In 1953, Henry Hart published a law review article that was styled as a Socratic dialogue, in which he raised a bewildering set of questions about federal jurisdiction, but the central question he asked was this: how much power does Congress have to control the jurisdiction of the federal courts?

The text of the Constitution, standing alone, appears to give Congress near-complete control over federal court jurisdiction: (1) Pursuant to the so-called "Madisonian Compromise" at the Constitutional Convention between those who wanted there to be lower federal courts and those who thought such courts unnecessary, Article III gives Congress the power to create as many or as few federal courts as it wishes, and thus, it is generally assumed, to vest in them as much or as little of the jurisdiction described in Article III as it wishes; and (2) Although the Constitution sets out the appellate jurisdiction of the Supreme Court, it also authorizes Congress to make "Exceptions" to that jurisdiction. Accordingly, under one fairly straightforward reading of Article III, Congress could strip both the lower federal courts and the Supreme Court of the power to adjudicate any or all cases.

Yet a moment's reflection reveals that Congress may not draw any lines it wishes when it comes to jurisdiction. In particular, constitutional provisions outside of Article III--such as the Fifth Amendment Due Process Clause--impose limits on how Congress carves up jurisdiction, just as such provisions limit how Congress may exercise any of its other powers. For example, although Congress could completely eliminate the diversity jurisdiction of the federal district courts, it cannot restrict diversity jurisdiction to cases in which the plaintiff is a white person or a man, because such a restriction would violate the equal protection component of the Fifth Amendment's Due Process Clause. Nearly everyone agrees that Congress is bound by such "external" limits.

The trickier questions are whether there are any limits that are "internal" to Article III and, if so, what they are. Hart himself thought that Congress could not use its power under the Exceptions Clause in such a way as to undermine the essential functions of the Supreme Court. More recently, Larry Sager argued that, at a minimum, that means preserving jurisdiction in constitutional cases.

Another source of proposed limits can be traced to Justice Story, who elaborated a theory under which Congress was obligated to ensure that some federal forum was available for just about all categories of cases that are preceded by the word "all" in Article III. Akhil Amar revived and refined Story's theory some years ago.

Finally, and to my mind most compellingly, Larry Tribe argued in the early 1980s that, whatever else Congress may do to control the jurisdiction of the federal courts, it may not engage in "jurisdictional gerrymandering"--i.e., it may not, in the guise of a jurisdictional statute, disfavor particular constitutional rights. Bills that would do just that--e.g., to strip the federal courts of the power to hear cases involving challenges to the Pledge of Allegiance or to abortion restrictions--have been floated from time to time, but rarely enacted.

Perhaps the most notorious example of a jurisdictional gerrymander that did get enacted was the Portal-to-Portal Act of 1947. The substantive provisions of the Act deprived workers of certain overtime compensation that they had previously been held to be entitled under the Fair Labor Standards Act (FLSA). The procedural provisions stripped the federal courts of the power to enforce awards based on the more generous reading of the FLSA that the substantive provisions repudiated. The validity of the jurisdictional provision was never adjudicated by the Supreme Court but in Battaglia v. General Motors, the U.S. Court of Appeals for the Second Circuit upheld the jurisdiction-stripping; however, it did so (it said) only because it thought that the substantive provision was valid. If the substantive provision had been invalid--i.e., if the workers were constitutionally entitled to their remedy under the FLSA--then the court implied that Congress could not eliminate any forum for its enforcement.

Battaglia's impact is unclearfor multiple reasons: (1) The SCOTUS never affirmed it; (2) It suggests there are limits on jurisdiction-stripping but doesn't find any in the particular case; and (3) It appears to collapse the internal and external questions. In other cases in which Congress has appeared to engage in jurisdiction-stripping, the Supreme Court has bent over backwards to read the statutory language as preserving jurisdiction, and thus has studiously avoided deciding the precise scope of the general power of jurisdiction-stripping. (The Court has clearly limited the power of Congress to strip the federal courts of jurisdiction in habeas corpus cases, but it has done so pursuant to the Suspension Clause of Article I, not pursuant to Article III).

The Portal-to-Portal Act was notable not only for stripping federal courts of jurisdiction but also stripping jurisdiction from state courts. Sometimes jurisdiction-stripping proposals leave the state courts available as a possible venue for bringing federal claims. That's problematic from a policy perspective, because with Supreme Court review eliminated, there's no body that can maintain the uniformity of federal law, but it's not clear that it would be unconstitutional for Congress to relegate some category of federal law claims to state courts only. That category is limited, however, by the fact that some of the most important cases would be ones in which the plaintiff seeks injunctive relief against a federal official, but the Supremacy Clause has generally been interpreted to bar such state-to-federal orders.

So, to return to the framing question: Could Congress strip the courts of the power to entertain challenges to FISA orders by surveillance targets? The answer is a resounding maybe.

Sunday, July 14, 2013

By Mike DorfSen. Harry Reid currently plans to move the "nuclear option"--eliminating the filibuster by an ordinary majority vote--but only with respect to Senate confirmation votes for nominees to the excecutive branch. Should this succeed, the filibuster will survive (for now) for legislation and for judicial nominees. Is that a sensible line?

The conventional argument for distinguishing between executive branch nominations, on the one hand, and legislation and judicial nominations, on the other hand, is that the President is entitled to have his own team for carrying out policy through the executive branch, whereas Senators get an equal say in legislation and the staffing of the federal judiciary, a co-equal branch. Other things being equal, getting rid of the filibuster makes it easier for the President to have his nominees confirmed.

That's the conventional wisdom but is it right? I'm not so sure.

We might begin by asking why the Senate plays any role at all in confirming executive branch appointees. Perhaps in the early Republic, Senators--as prominent statesmen--would have had access to valuable information on a substantial fraction of nominees, but in the modern world, Senate confirmation does not seem like a necessary check to ensure that appointees have the right qualifications and character. The White House and the federal bureaucracy can vet plenty adequately without Senate help. Perhaps the knowledge that there will be Senate confirmation hearings holds the President's feet to the fire with respect to professional qualifications, temperament, etc., but it's hard to believe that that is the chief function of Senate confirmation. Certainly it's not the only function of Senate confirmation.

In particular, it strikes me that there is a substantial role for policy considerations in the process of confirming executive branch nominees. Suppose a President nominates someone to head an agency even though his record indicates that he would likely be hostile to the policies established by Congress in statutes that the nominee, if confirmed, would be supposed to enforce: E.g., President Reagan's successful nomination of James Watt as Secretary of the Interior. Were Democrats who opposed Watt wrong to do so on the ground that the President was entitled to his own team?

A little reflection on this example leads me to think that the conventional wisdom needs to be amended to something more like the following: Within a range of reasonable disagreement about how to implement federal law, the President is entitled to his own team. But once we say that this is the standard, then it's no longer clear that it is best implemented by a different rule from judicial nominees.

How much deference should Senators give to the President in considering judicial nominees? I think the answer has to be "some." If the answer is "none," then whenever the party with a majority in the Senate differs from the President's party, the President will either have to nominate judges who satisfy the Senators' druthers but not his own, or expect to have no judges confirmed. And that's without the filibuster. For the system to work over the long run, we need to expect that Senators will give some deference to a President's choice: more deference when the President is in the same party as the Senate majority; less (but still some) deference when they are of different parties. And that is pretty much how things have traditionally worked--at least until the very recent period of breakdown.

Meanwhile, the answer to the question of how much deference members of Congress should give the President in considering ordinary legislation is probably "close to zero." If a member of Congress thinks that, all things considered, some proposed legislation would make the republic worse than the next most likely alternative would, then (absent some sort of promise from the President or party loyalty in the case of a legislator of the same party as the President) the member of Congress should vote against the bill.

Now it's not entirely clear to me that filibuster/cloture rules are the right tool for implementing the foregoing norms. However, assuming they are, then I would group executive and judicial nominations together in one category, while putting ordinary legislation in the other. That is, if we think of the filibuster rule as a rough proxy for how easy or hard it should be for the President to work his will in Congress, we would say that it's easier to justify the filibuster for ordinary legislation than for either kind of nomination. As between judicial and executive nominations, I suppose we might think that the President is entitled to more deference with respect to executive nominations, and therefore that if one wants to eliminate the filibuster as to one category only, Reid's decision to start with executive nominations makes sense.

Having said that, it strikes me that this whole issue is quite amenable to just-so stories. I once read a thoughtful analysis that defended the filibuster only for judicial nominees, on the theory that a super-majority requirement would lead to a long-term equilibrium in which Presidents appointed moderates. It hasn't exactly worked that way lately, but there are so many moving parts to this sort of issue that it's nearly impossible to predict how any particular set of rules will work in practice.